Exhibit 4.6
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FORM OF
PREFERRED SECURITIES GUARANTEE AGREEMENT
Xxxxxx Financing Trust
Dated as of _______________________
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CROSS REFERENCE TABLE(1)
Section of Trust Indenture Act
of 1939, as amended Section of Agreement
310(a)............................................4.1(a)
310(b)..............................................2.8
310(c)..........................................Inapplicable
311(a)..............................................2.2(b)
311(b)..............................................2.2(b)
311(c)..........................................Inapplicable
312(a)..............................................2.2(a)
312(b)..............................................2.2(b)
312(c) .........................................Inapplicable
313(a)..............................................2.3
313(b) .............................................2.3
313(c)..............................................2.3
313(d)..............................................2.3
314(a)..............................................2.4
314(b)..........................................Inapplicable
314(c)..............................................2.5
314(d)..........................................Inapplicable
314(e)..............................................2.5
314(f)..........................................Inapplicable
315(a)......................................3.1(d); 3.2(a)
315(b)..............................................2.7(a)
315(c)..............................................3.1(c)
315(d)..............................................3.1(d)
315(e)..........................................Inapplicable
316(a).........................................2.6; 5.4(a)
316(b)..............................................2.6
316(c)..........................................Inapplicable
317(a)..............................................3.1(b)
317(b)..............................................3.1(a)
318(a)..............................................2.1(b)
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(1) This Cross Reference Table does not constitute part of the Agreement
and shall not have any bearing upon the interpretation of any of its
terms or provisions.
ARTICLE I DEFINITIONS AND INTERPRETATION..........................................................................1
SECTION 1.1 Definitions and Interpretation.........................................................1
ARTICLE II TRUST INDENTURE ACT....................................................................................4
SECTION 2.1 Trust Indenture Act; Application.......................................................4
SECTION 2.2 Lists of Holders.......................................................................4
SECTION 2.3 Reports by the Preferred Securities Guarantee Trustee..................................4
SECTION 2.4 Periodic Reports to Preferred Securities Guarantee Trustee.............................5
SECTION 2.5 Evidence of Compliance with Conditions Precedent.......................................5
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SECTION 2.6 Event of Default; Waiver...............................................................5
SECTION 2.7 Event of Default; Notice...............................................................5
SECTION 2.8 Conflicting Interests..................................................................6
ARTICLE III POWERS, DUTIES AND RIGHTS OF PREFERRED SECURITIES GUARANTEE TRUSTEE...................................6
SECTION 3.1 Powers and Duties of the Preferred Securities Guarantee Trustee........................6
SECTION 3.2 Certain Rights of Preferred Securities Guarantee Trustee...............................7
SECTION 3.3 Not Responsible for Recitals or Issuance of Preferred Securities Guarantee.............9
ARTICLE IV PREFERRED SECURITIES GUARANTEE TRUSTEE.................................................................9
SECTION 4.1 Preferred Securities Guarantee Trustee: Eligibility....................................9
SECTION 4.2 Appointment, Removal and Resignation of Preferred Securities Guarantee Trustee........10
ARTICLE V GUARANTEE..............................................................................................11
SECTION 5.1 Guarantee.............................................................................11
SECTION 5.2 Waiver of Notice and Demand...........................................................11
SECTION 5.3 Obligations Not Affected..............................................................11
SECTION 5.4 Rights of Holders.....................................................................12
SECTION 5.5 Guarantee of Payment..................................................................12
SECTION 5.6 Subrogation...........................................................................12
SECTION 5.7 Independent Obligations...............................................................12
ARTICLE VI LIMITATION OF TRANSACTIONS; SUBORDINATION.............................................................12
SECTION 6.1 Limitation of Transactions............................................................12
SECTION 6.2 Subordination.........................................................................13
ARTICLE VII TERMINATION..........................................................................................13
SECTION 7.1 Termination...........................................................................13
ARTICLE VIII INDEMNIFICATION.....................................................................................13
SECTION 8.1 Exculpation...........................................................................13
SECTION 8.2 Indemnification.......................................................................13
SECTION 8.3 Compensation..........................................................................14
ARTICLE IX MISCELLANEOUS.........................................................................................14
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SECTION 9.1 Successors and Assigns................................................................14
SECTION 9.2 Amendments............................................................................14
SECTION 9.3 Notices...............................................................................14
SECTION 9.4 Benefit...............................................................................15
SECTION 9.5 Governing Law.........................................................................15
SECTION 9.6 Counterparts..........................................................................15
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PREFERRED SECURITIES GUARANTEE AGREEMENT
This GUARANTEE AGREEMENT (the "Preferred Securities Guarantee"),
dated as of _________________, is executed and delivered by Xxxxxx
Communications Corporation, an Oklahoma corporation (the "Guarantor"),
and_________________________, as trustee (the "Preferred Securities Guarantee
Trustee"), for the benefit of the Holders (as defined herein) from time to time
of the Preferred Securities (as defined herein) of Xxxxxx Financing Trust, a
Delaware statutory business trust (the "Issuer").
WHEREAS, pursuant to an Amended and Restated Declaration of Trust
(the "Declaration"), dated as of _______________________, among the trustees of
the Issuer named therein, the Guarantor, as sponsor, and the holders from time
to time of undivided beneficial interests in the assets of the Issuer, the
Issuer is issuing on the date hereof up to _______________ preferred securities,
liquidation amount $______ per preferred security, having an aggregate
liquidation amount of $________________ designated the _____ Preferred
Securities (the "Preferred Securities").
WHEREAS, as incentive for the Holders to purchase the Preferred
Securities, the Guarantor desires irrevocably and unconditionally to agree, to
the extent set forth in this Preferred Securities Guarantee, to pay to the
Holders of the Preferred Securities the Guarantee Payments (as defined herein)
and to make certain other payments on the terms and conditions set forth herein.
WHEREAS, as of the date hereof, the Guarantor is also executing and
delivering a guarantee agreement (the "Common Securities Guarantee") in
substantially identical terms to this Preferred Securities Guarantee for the
benefit of the holders of the Common Securities (as defined herein), except that
if an Event of Default (as defined in the Indenture), has occurred and is
continuing, the rights of holders of the Common Securities to receive Guarantee
Payments under the Common Securities Guarantee are subordinated to the rights of
Holders of Preferred Securities to receive Guarantee Payments under this
Preferred Securities Guarantee.
NOW, THEREFORE, in consideration of the purchase by each Holder of
Preferred Securities, which purchase the Guarantor hereby agrees shall benefit
the Guarantor, the Guarantor executes and delivers this Preferred Securities
Guarantee for the benefit of the Holders.
ARTICLE I
DEFINITIONS AND INTERPRETATION
SECTION 1.1 Definitions and Interpretation
In this Preferred Securities Guarantee, unless the context otherwise
requires or otherwise specifies:
(a) Capitalized terms used in this Preferred Securities Guarantee
but not defined in the preamble above have the respective
meanings assigned to them in this Section 1.1;
(b) terms defined in the Declaration as at the date of execution
of this Preferred Securities Guarantee have the same meaning
when used in this Preferred Securities Guarantee unless
otherwise defined in this Preferred Securities Guarantee;
(c) a term defined anywhere in this Preferred Securities
Guarantee has the same meaning throughout;
(d) all references to "the Preferred Securities Guarantee" or
"this Preferred Securities Guarantee" are to this Preferred
Securities Guarantee as modified, supplemented or amended from
time to time;
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(e) all references in this Preferred Securities Guarantee to
Articles and Sections are to Articles and Sections of this
Preferred Securities Guarantee, unless otherwise specified;
(f) a term defined in the Trust Indenture Act has the same meaning
when used in this Preferred Securities Guarantee, unless
otherwise defined in this Preferred Securities Guarantee or
unless the context otherwise requires;
(g) a reference to the singular includes the plural and vice
versa;
(h) the words "include," "includes" and "including" shall be
deemed to be followed by the phrase "without limitation;"
and
(i) the words "herein," "hereof" and "hereunder" and other words
of similar import refer to this Agreement as a whole and not
to any particular Article or Section or other subdivision.
"Affiliate" has the same meaning given to that term in Rule 405 of
the Securities Act of 1933, as amended, or any successor rule thereunder.
"Authorized Officer" of a Person means any Person that is authorized
to bind such Person.
"Business Day" means any day other than Saturday, Sunday or any day
on which banking institutions and trust companies in the city of New York City
are permitted or required by any applicable law or executive order to close.
"Common Securities" means the securities representing common
undivided beneficial interests in the assets of the Issuer.
"Corporate Trust Office" means the office of the Preferred
Securities Guarantee Trustee at which the corporate trust business of the
Preferred Securities Guarantee Trustee shall, at any particular time, be
principally administered, which office at the date of execution of this
Agreement is located at___________________________________________.
"Covered Person" means any Holder or beneficial owner of Preferred
Securities.
"Debentures" means the series of debt securities of the Guarantor
issued under the Indenture (as defined in the Declaration) held by the Property
Trustee (as defined in the Declaration) on behalf of the Issuer.
"Direction" by a person means a written direction signed: (a) if the
Person is a natural person, by that Person; or (b) in any other case in the name
of such Person by one or more Authorized Officers of that Person.
"Event of Default" means (i) a default by the Guarantor on any of
its payment obligations under this Preferred Securities Guarantee, or (ii) a
default by the Guarantor on any other obligation hereunder that remains uncured
for 90 days.
"Guarantee Payments" means the following payments or distributions,
without duplication, with respect to the Preferred Securities, to the extent not
paid or made by the Issuer: (i) any accrued and unpaid Distributions (as defined
in the Declaration) that are required to be paid on such Preferred Securities to
the extent the Issuer shall have funds available therefor; (ii) the redemption
or repayment price, if any specified in the Declaration, including all accrued
and unpaid distributions to the date of redemption or repayment (the "Redemption
or Repayment Price") to the extent the Issuer has funds available therefor, with
respect to any
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Preferred Securities called or submitted for redemption or repayment by the
Issuer; and (iii) upon a voluntary or involuntary dissolution, winding-up or
termination of the Issuer (other than in connection with the distribution of
Debt Securities to the Holders in exchange for Preferred Securities as
provided in the Declaration), the lesser of (a) the aggregate of the
liquidation amount and all accrued and unpaid Distributions on the Preferred
Securities to the date of payment, to the extent the Issuer shall have funds
available therefor, and (b) the amount of assets of the Issuer remaining
available for distribution to Holders in liquidation of the Issuer (in either
case, the "Liquidation Distribution").
"Holder" shall mean any holder, as registered on the books and
records of the Issuer, of any Preferred Securities; provided, however, that, in
determining whether the holders of the requisite percentage of Preferred
Securities have given any request, notice, consent or waiver hereunder, "Holder"
shall not include the Guarantor or any Affiliate of the Guarantor.
"Indemnified Person" means the Preferred Securities Guarantee
Trustee, including in its individual capacity, any Affiliate of the Preferred
Securities Guarantee Trustee, or any officers, directors, shareholders, members,
partners, employees, representatives, nominees, custodians or agents of the
Preferred Securities Guarantee Trustee.
"Officers' Certificate" means, with respect to (A) the Guarantor, a
certificate signed by the Chairman of the Board, a Vice Chairman, the President
or a Vice President, and by the Treasurer, an Assistant Treasurer, the Secretary
or an Assistant Secretary of the Guarantor and (B) any other Person, a
certificate signed by any two Authorized Officers of such Person. Any Officers'
Certificate delivered with respect to compliance with a condition or covenant
provided for in this Preferred Guarantee Agreement shall comply with Section 314
of the Trust Indenture Act and shall include:
(a) a statement that the individuals signing the Officers'
Certificate have read the covenant or condition and the
definitions relating thereto;
(b) a brief statement of the nature and scope of the examination
or investigation upon which the statements or opinions
contained in such Officers' Certificate are based;
(c) a statement that, in that opinion of each such individual, he
or she has made such examination or investigation as, in such
individual's opinion, is necessary to enable such individual
to express an informed opinion as to whether or not such
covenant or condition has been complied with; and
(d) a statement as to whether, in the opinion of such individuals,
such condition or covenant has been complied with.
"Other Document" means any instrument or agreement constituting
Trust Property, other than the Debentures, specified in the Declaration.
"Person" means a legal person, including any individual,
corporation, estate, partnership, joint venture, association, joint stock
company, limited liability company, trust, unincorporated association or
government or any agency or political subdivision thereof, or any other entity
of whatever nature.
"Preferred Securities Guarantee Trustee" means________
____________________, until a Successor Preferred Securities Guarantee Trustee
has been appointed and has accepted such appointment pursuant to the terms of
this Preferred Securities Guarantee and thereafter means each such Successor
Preferred Securities Guarantee Trustee.
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"Responsible Officer" means, with respect to the Preferred
Securities Guarantee Trustee, any officer within the Corporate Trust Office of
the Preferred Securities Guarantee Trustee with direct responsibility for the
Preferred Guarantee Trustee's obligations under this Preferred Guarantee
Agreement and also means, with respect to a particular corporate trust matter,
any other officer to whom such matter is referred because of that Officer's
knowledge of and familiarity with the particular subject.
"Successor Preferred Securities Guarantee Trustee" means a successor
Preferred Securities Guarantee Trustee possessing the qualifications to act as
Preferred Securities Guarantee Trustee under Section 4.1.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as
amended.
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.1 Trust Indenture Act; Application
(a) This Preferred Securities Guarantee will be subject to the
provisions of the Trust Indenture Act that will be required to be part of this
Preferred Securities Guarantee and shall, to the extent applicable, be governed
by such provisions; and
(b) if and to the extent that any provision of this Preferred
Securities Guarantee limits, qualifies or conflicts with the duties imposed by
Section 310 to 317, inclusive, of the Trust Indenture Act, such imposed duties
shall control.
SECTION 2.2 Lists of Holders
(a) In accordance with Section 312(a) of the Trust Indenture Act,
the Guarantor shall provide to the Preferred Securities Guarantee Trustee:
(i) Within 14 days after each of the dates as are determined for the
Property Trustee pursuant to Section 2.2(a)(i) of the Declaration, a list, in
such form as the Preferred Securities Guarantee Trustee may reasonably require,
of the names and addresses of the Holders ("List of Holders") as of such date,
provided that the Guarantor shall not be obligated to provide such List of
Holders if the Preferred Securities Guarantee Trustee is the Registrar or at any
time the List of Holders does not differ from the most recent List of Holders
given to the Preferred Securities Guarantee Trustee by the Guarantor; and
(ii) At any other time, within 30 days of receipt by the Guarantor
of a written request by the Preferred Securities Guarantee Trustee for a List of
Holders as of a date no more than 14 days before such List of Holders is given
to the Preferred Securities Guarantee Trustee. The Preferred Securities
Guarantee Trustee shall preserve, in as current a form as is reasonably
practicable, all information contained in the List of Holders given to it or
which it receives in its capacity as paying agent or registrar (if acting in
such capacity), provided that the Preferred Securities Guarantee Trustee may
destroy any List of Holders previously given to it on receipt of a new List of
Holders.
(b) To the extent applicable, the Property Trustee shall comply with
its obligations under Sections 311(a), 311(b) and 312(b) of the Trust Indenture
Act.
SECTION 2.3 Reports by the Preferred Securities Guarantee Trustee
Within 60 days after [MAY 15] of each year, the Preferred Securities
Guarantee Trustee shall provide to the Holders such reports as are required by
Section 313 of the Trust Indenture Act, if any, in the form and in the manner
provided by
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Section 313 of the Trust Indenture Act. The Preferred Securities Guarantee
Trustee shall also comply with the requirements of Section 313(d) of the
Trust Indenture Act.
SECTION 2.4 Periodic Reports to Preferred Securities Guarantee Trustee
The Guarantor shall provide to the Preferred Securities Guarantee
Trustee such documents, reports and information as are required by Section 314,
if any, and the compliance certificate required by Section 314 of the Trust
Indenture Act in the form, in the manner and at the times required by Section
314 of the Trust Indenture Act.
SECTION 2.5 Evidence of Compliance with Conditions Precedent
The Guarantor shall provide to the Preferred Securities Guarantee
Trustee such evidence of compliance with any conditions precedent, if any,
provided for in this Preferred Securities Guarantee that relate to any of the
matters set forth in Section 314(c) of the Trust Indenture Act. Any certificate
or opinion required to be given by an officer pursuant to Section 314(c)(1) may
be given in the form of an Officers' Certificate.
SECTION 2.6 Event of Default; Waiver
The Holders of a Majority in liquidation amount of Preferred
Securities may, by vote, on behalf of the Holders of all of the Preferred
Securities, waive any past Event of Default and its consequences. Upon such
waiver, any such Event of Default shall cease to exist, and any Event of Default
arising therefrom shall be deemed to have been cured, for every purpose of this
Preferred Securities Guarantee, but no such waiver shall extend to any
subsequent or other default or Event of Default or impair any right consequent
thereon.
SECTION 2.7 Event of Default; Notice
(a) The Preferred Securities Guarantee Trustee shall, within 90 days
after a Responsible Officer of the Preferred Securities Guarantee Trustee
obtains actual knowledge of the occurrence of an Event of Default, transmit by
mail, first class postage prepaid, to the Holders, notices of all Events of
Default actually known to a Responsible Officer of the Preferred Securities
Guarantee Trustee, unless such defaults have been cured before the giving of
such notice, provided, that, except in the case of default in the payment of any
Guarantee Payment or, if applicable, in the delivery of any cash, securities or
other property in exchange for or upon conversion or redemption of or otherwise
in accordance with the terms of, any Debenture or Other Document or the
Securities, the Preferred Securities Guarantee Trustee shall be protected in
withholding such notice if and so long as a Responsible Officer of the Preferred
Securities Guarantee Trustee in good faith determines that the withholding of
such notice is in the interests of the Holders.
(b) The Preferred Securities Guarantee Trustee shall not be deemed
to have knowledge of any Event of Default except:
(i) a default in the payment of any Guarantee Payment;
(ii) any failure to deliver any cash, securities or other property
in exchange for or upon conversion or redemption of or otherwise in accordance
with the terms of any Debenture or Other Document or the Securities; if
applicable; and
(iii) any default as to which the Preferred Securities Guarantee
Trustee shall have received written notice or of which a Responsible Officer of
the Preferred Securities Guarantee Trustee charged with the administration of
this Preferred Securities Guarantee Agreement shall have actual knowledge.
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(c) The Guarantor shall file annually within 30 days after [MAY 15]
of each year, commencing with the May 15 that first occurs following the
issuance of the Preferred Securities, with the Preferred Securities Guarantee
Trustee in accordance with Section 314(a)(4) of the Trust Indenture Act a
certification as to whether or not it is in compliance with all the conditions
applicable to it under this Preferred Securities Guarantee Agreement.
SECTION 2.8 Conflicting Interests
(a) If the Preferred Securities Guarantee Trustee has or shall
acquire any "conflicting interest" within the meaning of Section 310(b) of the
Trust Indenture Act, the Preferred Securities Guarantee Trustee shall in all
respects comply with the provisions of Section 310(b) of the Trust Indenture
Act.
(b) The [AGREEMENT] and the Indenture shall be deemed to be
specifically described in this Preferred Securities Guarantee for the purposes
of clause (i) of the first proviso contained in Section 310(b) of the Trust
Indenture Act. [Describe others if applicable]
ARTICLE III
POWERS, DUTIES AND RIGHTS OF
PREFERRED SECURITIES GUARANTEE TRUSTEE
SECTION 3.1 Powers and Duties of the Preferred Securities Guarantee Trustee
(a) This Preferred Securities Guarantee shall be held by the
Preferred Securities Guarantee Trustee for the benefit of the Holders and the
Preferred Securities Guarantee Trustee shall not transfer this Preferred
Securities Guarantee to any Person except a Holder exercising his or her rights
pursuant to Section 5.4(b) or to a Successor Preferred Securities Guarantee
Trustee on acceptance by such Successor Preferred Securities Guarantee Trustee
of its appointment to act as Successor Preferred Securities Guarantee Trustee.
The right, title and interest of the Preferred Securities Guarantee Trustee
shall automatically vest in any Successor Preferred Securities Guarantee
Trustee, and such vesting and succession of title shall be effective whether or
not conveyancing documents have been executed and delivered pursuant to the
appointment of such Successor Preferred Securities Guarantee Trustee.
(b) If an Event of Default actually known to a Responsible Officer
of the Preferred Securities Guarantee Trustee has occurred and is continuing,
the Preferred Securities Guarantee Trustee shall enforce this Preferred
Securities Guarantee for the benefit of the Holders.
(c) The Preferred Securities Guarantee Trustee, before the
occurrence of any Event of Default and after the curing of all Events of Default
that may have occurred, shall undertake to perform only such duties as are
specifically set forth in this Preferred Securities Guarantee, and no implied
covenants shall be read into this Preferred Securities Guarantee against the
Preferred Securities Guarantee Trustee. In case an Event of Default has occurred
(that has not been cured or waived pursuant to Section 2.6) and is actually
known to a Responsible Officer of the Preferred Securities Guarantee Trustee,
the Preferred Securities Guarantee Trustee shall exercise such of the rights and
powers vested in it by this Preferred Securities Guarantee, and shall use the
same degree of care and skill in its exercise thereof as a prudent person would
exercise or use under the circumstances in the conduct of his or her own
affairs.
(d) No provision of this Preferred Securities Guarantee shall be
construed to relieve the Preferred Securities Guarantee Trustee from liability
for its own negligent action, its own negligent failure to act, or its own
willful misconduct, except that:
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(i) prior to the occurrence of any Event of Default and after the
curing or waiving of all such Events of Default that may have occurred:
(A) the duties and obligations of the Preferred Securities
Guarantee Trustee shall be determined solely by the express
provisions of this Preferred Securities Guarantee, and the Preferred
Securities Guarantee Trustee shall not be liable except for the
performance of such duties and obligations as are specifically set
forth in this Preferred Securities Guarantee, and no implied
covenants or obligations shall be read into this Preferred
Securities Guarantee against the Preferred Securities Guarantee
Trustee; and
(B) in the absence of bad faith on the part of the Preferred
Securities Guarantee Trustee, the Preferred Securities Guarantee
Trustee may conclusively rely, as to the truth of the statements and
the correctness of the opinions expressed therein, upon any
certificates or opinions furnished to the Preferred Securities
Guarantee Trustee and conforming to the requirements of this
Preferred Securities Guarantee; but in the case of any such
certificates or opinions that by any provision hereof are
specifically required to be furnished to the Preferred Securities
Guarantee Trustee, the Preferred Securities Guarantee Trustee shall
be under a duty to examine the same to determine whether or not they
conform to the requirements of this Preferred Securities Guarantee;
(ii) the Preferred Securities Guarantee Trustee shall not be liable
for any error of judgment made in good faith by a Responsible Officer of the
Preferred Securities Guarantee Trustee, unless it shall be proved that the
Preferred Securities Guarantee Trustee was negligent in ascertaining the
pertinent facts upon which such judgment was made;
(iii) the Preferred Securities Guarantee Trustee shall not be liable
with respect to any action taken or omitted to be taken by it in good faith in
accordance with the direction of the Holders of not less than a Majority in
liquidation amount of the Preferred Securities relating to the time, method and
place of conducting any proceeding for any remedy available to the Preferred
Securities Guarantee Trustee, or exercising any trust or power conferred upon
the Preferred Securities Guarantee Trustee under this Preferred Securities
Guarantee; and
(iv) no provision of this Preferred Securities Guarantee shall
require the Preferred Securities Guarantee Trustee to expend or risk its own
funds or otherwise incur personal financial liability in the performance of any
of its duties or in the exercise of any of its rights or powers, if the
Preferred Securities Guarantee Trustee shall have reasonable grounds for
believing that the repayment of such funds or liability is not reasonably
assured to it under the terms of this Preferred Securities Guarantee or
indemnity, reasonably satisfactory to the Preferred Securities Guarantee
Trustee, against such risk or liability is not reasonably assured to it.
SECTION 3.2 Certain Rights of Preferred Securities Guarantee Trustee
(a) Subject to the provisions of Section 3.1:
(i) The Preferred Securities Guarantee Trustee may conclusively
rely, and shall be fully protected in acting or refraining from acting upon, any
resolution, certificate, statement, instrument, opinion, report, notice,
request, direction, consent, order, bond, debenture, note, other evidence of
indebtedness or other paper or document believed by it to be genuine and to have
been signed, sent or presented by the proper party or parties.
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(ii) Any direction or act of the Guarantor contemplated by this
Preferred Securities Guarantee shall be sufficiently evidenced by an Officers'
Certificate.
(iii) Whenever, in the administration of this Preferred Securities
Guarantee, the Preferred Securities Guarantee Trustee shall deem it desirable
that a matter be proved or established before taking, suffering or omitting any
action hereunder, the Preferred Securities Guarantee Trustee (unless other
evidence is herein specifically prescribed) may, in the absence of bad faith on
its part, request and conclusively rely upon an Officers' Certificate which,
upon receipt of such request, shall be promptly delivered by the Guarantor.
(iv) The Preferred Securities Guarantee Trustee shall have no duty
to see to any recording, filing or registration of any instrument (or any
rerecording, refiling or re-registration thereof).
(v) The Preferred Securities Guarantee Trustee may consult with
counsel of its selection, and the advice or opinion of such counsel with respect
to legal matters shall be full and complete authorization and protection in
respect of any action taken, suffered or omitted by it hereunder in good faith
and in accordance with such advice or opinion. Such counsel may be counsel to
the Guarantor or any of its Affiliates and may include any of its employees. The
Preferred Securities Guarantee Trustee shall have the right at any time to seek
instructions concerning the administration of this Preferred Securities
Guarantee from any court of competent jurisdiction.
(vi) The Preferred Securities Guarantee Trustee shall be under no
obligation to exercise any of the rights or powers vested in it by this
Preferred Securities Guarantee at the request or direction of any Holder, unless
such Holder shall have provided to the Preferred Securities Guarantee Trustee
such security and indemnity, reasonably satisfactory to the Preferred Securities
Guarantee Trustee, against the costs, expenses (including attorneys' fees and
expenses and the expenses of the Preferred Securities Guarantee Trustee's
agents, nominees or custodians) and liabilities that might be incurred by it in
complying with such request or direction, including such reasonable advances as
may be requested by the Preferred Securities Guarantee Trustee; provided that,
nothing contained in this Section 3.2(a)(vi) shall be taken to relieve the
Preferred Securities Guarantee Trustee, upon the occurrence of an Event of
Default, of its obligation to exercise the rights and powers vested in it by
this Preferred Securities Guarantee.
(vii) The Preferred Securities Guarantee Trustee shall not be bound
to make any investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other evidence of indebtedness or other
paper or document, but the Preferred Securities Guarantee Trustee, in its
discretion, may make such further inquiry or investigation into such facts or
matters as it may see fit.
(viii) The Preferred Securities Guarantee Trustee may execute any of
the trusts or powers hereunder or perform any duties hereunder either directly
or by or through agents, nominees, custodians or attorneys, and the Preferred
Securities Guarantee Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by it
hereunder.
(ix) Any action taken by the Preferred Securities Guarantee Trustee
or its agents hereunder shall bind the Holders and the signature of the
Preferred Securities Guarantee Trustee or its agents alone shall be sufficient
and effective to perform any such action. No third party shall be required to
inquire as to the authority of the Preferred Securities Guarantee Trustee to so
act or as to its compliance with any of the terms and provisions of this
Preferred Securities
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Guarantee, both of which shall be conclusively evidenced by the Preferred
Securities Guarantee Trustee or its agents taking such action.
(x) Whenever in the administration of this Preferred Securities
Guarantee the Preferred Securities Guarantee Trustee shall deem it desirable to
receive instructions with respect to enforcing any remedy or right or taking any
other action hereunder, the Preferred Securities Guarantee Trustee (i) may
request instructions from the Holders of a Majority in liquidation amount of the
Preferred Securities, (ii) may refrain from enforcing such remedy or right or
taking such other action until such instructions are received, and (iii) shall
be protected in conclusively relying on or acting in accordance with such
instructions.
(xi) Except as otherwise expressly provided by this Preferred
Securities Guarantee, the Preferred Securities Guarantee Trustee shall not be
under any obligation to take any action that is discretionary under the
provisions of this Preferred Securities Agreement; and
(xii) The Preferred Securities Trustee shall not be liable for any
action taken, suffered, or omitted to be taken by it in good faith and
reasonably believed by it to be authorized or within the discretion or rights or
powers conferred upon it by this Preferred Securities Guarantee.
(b) No provision of this Preferred Securities Guarantee shall be
deemed to impose any duty or obligation on the Preferred Securities Guarantee
Trustee to perform any act or acts or exercise any right, power, duty or
obligation conferred or imposed on it in any jurisdiction in which it shall be
illegal, or in which the Preferred Securities Guarantee Trustee shall be
unqualified or incompetent in accordance with applicable law, to perform any
such act or acts or to exercise any such right, power, duty or obligation. No
permissive power or authority available to the Preferred Securities Guarantee
Trustee shall be construed to be a duty.
SECTION 3.3 Not Responsible for Recitals or Issuance of Preferred Securities
Guarantee
The recitals contained in this Preferred Securities Guarantee shall
be taken as the statements of the Guarantor, and the Preferred Securities
Guarantee Trustee does not assume any responsibility for their correctness. The
Preferred Securities Guarantee Trustee makes no representation as to the
validity or sufficiency of this Preferred Securities Guarantee.
ARTICLE IV
PREFERRED SECURITIES GUARANTEE TRUSTEE
SECTION 4.1 Preferred Securities Guarantee Trustee: Eligibility
(a) There shall at all times be a Preferred Securities
Guarantee Trustee which shall:
(i) not be an Affiliate of the Guarantor; and
(ii) be a corporation organized and doing business under the laws of
the United States of America or any State or Territory thereof or of the
District of Columbia, or a corporation or Person permitted by the Securities and
Exchange Commission to act as an institutional trustee under the Trust Indenture
Act, authorized under such laws to exercise corporate trust powers, having a
combined capital and surplus of at least 50 million U.S. dollars($50,000,000),
and subject to supervision or examination by federal, state, territorial or
District of Columbia authority. If such corporation publishes reports of
condition at least annually, pursuant to law or to the requirements of the
supervising or examining authority referred to above, then, for the purposes of
this Section 4.1(a)(ii), the combined
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capital and surplus of such corporation shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published.
(b) If at any time the Preferred Securities Guarantee Trustee shall
cease to be eligible to so act under Section 4.1(a), the Preferred Securities
Guarantee Trustee shall immediately resign in the manner and with the effect set
out in Section 4.2(c).
SECTION 4.2 Appointment, Removal and Resignation of Preferred Securities
Guarantee Trustee
(a) Subject to Section 4.2(b), the Preferred Securities Guarantee
Trustee may be removed without cause at any time:
(i) Until the issuance of any Preferred Securities, by written
instrument executed by the Guarantor;
(ii) Unless an Event of Default shall have occurred and be
continuing, after the issuance of any Securities, by the Guarantor; and
(iii) if an Event of Default shall have occurred and be continuing,
after the issuance of the Preferred Securities, by vote or written consent of
the Holders of a Majority in liquidation amount of the Preferred Securities.
(b) The Preferred Securities Guarantee Trustee shall not be removed
in accordance with Section 4.2(a) until a Successor Preferred Securities
Guarantee Trustee has been appointed and has accepted such appointment by
written instrument executed by such Successor Preferred Securities Guarantee
Trustee and delivered to the Guarantor.
(c) The Preferred Securities Guarantee Trustee appointed to office
shall hold office until a Successor Preferred Securities Guarantee Trustee shall
have been appointed or until its removal or resignation. The Preferred
Securities Guarantee Trustee may resign from office (without need for prior or
subsequent accounting) by an instrument in writing executed by the Preferred
Securities Guarantee Trustee and delivered to the Guarantor, which resignation
shall not take effect until a Successor Preferred Securities Guarantee Trustee
has been appointed and has accepted such appointment by instrument in writing
executed by such Successor Preferred Securities Guarantee Trustee and delivered
to the Guarantor and the resigning Preferred Securities Guarantee Trustee.
(d) If no Successor Preferred Securities Guarantee Trustee shall
have been appointed and accepted appointment as provided in this Section 4.2
within 60 days after delivery of an instrument of resignation or removal, the
Preferred Securities Guarantee Trustee resigning or being removed may petition
any court of competent jurisdiction for appointment of a Successor Preferred
Securities Guarantee Trustee. Such court may thereupon, after prescribing such
notice, if any, as it may deem proper, appoint a Successor Preferred Securities
Guarantee Trustee.
(e) No Preferred Securities Guarantee Trustee shall be liable for
the acts or omissions to act of any Successor Preferred Securities Guarantee
Trustee.
(f) Upon termination of this Preferred Securities Guarantee or
removal or resignation of the Preferred Securities Guarantee Trustee pursuant to
this Section 4.2, the Guarantor shall pay to the Preferred Securities Guarantee
Trustee all amounts accrued to the date of such termination, removal or
resignation.
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ARTICLE V
GUARANTEE
SECTION 5.1 Guarantee
The Guarantor irrevocably and unconditionally agrees to pay in full
to the Holders the Guarantee Payments (without duplication of amounts
theretofore paid by the Issuer), as and when due, regardless of any defense,
right of set-off or counterclaim that the Issuer may have or assert. The
Guarantor's obligation to make a Guarantee Payment may be satisfied by direct
payment of the required amounts by the Guarantor to the Holders or by causing
the Issuer to pay such amounts to the Holders.
SECTION 5.2 Waiver of Notice and Demand
The Guarantor hereby waives notice of acceptance of this Preferred
Securities Guarantee and of any liability to which it applies or may apply,
presentment, demand for payment, any right to require a proceeding first against
the Issuer or any other Person before proceeding against the Guarantor, protest,
notice of nonpayment, notice of dishonor, notice of redemption and all other
notices and demands.
SECTION 5.3 Obligations Not Affected
The obligations, covenants, agreements and duties of the Guarantor
under this Preferred Securities Guarantee shall in no way be affected or
impaired by reason of the happening from time to time of any of the following:
(a) the release or waiver, by operation of law or otherwise, of the
performance or observance by the Issuer of any express or implied agreement,
covenant, term or condition relating to the Preferred Securities to be performed
or observed by the Issuer;
(b) the extension of time for the payment by the Issuer of all or
any portion of the Distributions, Redemption Price, Liquidation Distribution or
any other sums payable under the terms of the Preferred Securities or the
extension of time for the performance of any other obligation under, arising out
of, or in connection with, the Preferred Securities (other than an extension of
time for payment of Distributions, Redemption Price, Liquidation Distribution or
other sum payable that results from the extension of any interest payment period
on the Debentures);
(c) any failure, omission, delay or lack of diligence on the part of
the Holders to enforce, assert or exercise any right, privilege, power or remedy
conferred on the Holders pursuant to the terms of the Preferred Securities, or
any action on the part of the Issuer granting on indulgence or extension of any
kind;
(d) the voluntary or involuntary liquidation, dissolution, sale of
any collateral, receivership, insolvency, bankruptcy, assignment for the benefit
of creditors, reorganization, arrangement, composition or readjustment of debt
of, or other similar proceedings affecting, the Issuer or any of the assets of
the Issuer;
(e) any invalidity of, or defect or deficiency in, the
Preferred Securities;
(f) the settlement or compromise of any obligation guaranteed
hereby or hereby incurred; or
(g) any other circumstance whatsoever that might otherwise
constitute a legal or equitable discharge or defense of a guarantor, it being
the intent of this Section 5.3 that the obligations of the Guarantor hereunder
shall be absolute and unconditional under any and all circumstances.
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There shall be no obligation of the Holders to give notice to, or
obtain consent of, the Guarantor with respect to the happening of any of the
foregoing.
SECTION 5.4 Rights of Holders
(a) The Holders of a Majority in liquidation amount of the Preferred
Securities have the right to direct the time, method and place of conducting of
any proceeding for any remedy available to the Preferred Securities Guarantee
Trustee in respect of this Preferred Securities Guarantee or exercising any
trust or power conferred upon the Preferred Securities Guarantee Trustee under
this Preferred Securities Guarantee.
(b) If the Preferred Securities Guarantee Trustee fails to enforce
such Preferred Securities Guarantee, any Holder of Preferred Securities may
institute a legal proceeding directly against the Guarantor to enforce the
Preferred Securities Guarantee Trustee's rights under this Preferred Securities
Guarantee, without first instituting a legal proceeding against the Issuer, the
Preferred Securities Guarantee Trustee or any other Person. The Guarantor waives
any right or remedy to require that any action be brought first against the
Issuer or any other person or entity before proceeding directly against the
Guarantor.
SECTION 5.5 Guarantee of Payment
This Preferred Securities Guarantee creates a guarantee of payment
and not of collection.
SECTION 5.6 Subrogation
The Guarantor shall be subrogated to all (if any) rights of the
Holders of Preferred Securities against the Issuer in respect of any amounts
paid to such Holders by the Guarantor under this Preferred Securities Guarantee;
provided, however, that the Guarantor shall not (except to the extent required
by mandatory provisions of law) be entitled to enforce or exercise any right
that it may acquire by way of subrogation or any indemnity, reimbursement or
other agreement, in all cases as a result of payment under this Preferred
Securities Guarantee, if, at the time of any such payment, any amounts are due
and unpaid under this Preferred Securities Guarantee. If any amount shall be
paid to the Guarantor in violation of the preceding sentence, the Guarantor
agrees to hold such amount in trust for the Holders and to pay over such amount
to the Holders.
SECTION 5.7 Independent Obligations
The Guarantor acknowledges that its obligations hereunder are
independent of the obligations of the Issuer with respect to the Preferred
Securities, and that the Guarantor shall be liable as principal and as debtor
hereunder to make Guarantee Payments pursuant to the terms of this Preferred
Securities Guarantee notwithstanding the occurrence of any event referred to in
subsections (a) through (g), inclusive, of Section 5.3 hereof.
ARTICLE VI
LIMITATION OF TRANSACTIONS; SUBORDINATION
SECTION 6.1 Limitation of Transactions
So long as any Preferred Securities remain outstanding, if there
shall have occurred an Event of Default or an event of default under the
Declaration, then [insert any limitations on transactions].
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SECTION 6.2 Subordination
This Preferred Securities Guarantee will constitute an unsecured
obligation of the Guarantor and will rank [insert applicable ranking].
ARTICLE VII
TERMINATION
SECTION 7.1 Termination
This Preferred Securities Guarantee shall terminate upon (i) full
payment of the Redemption Price of all Preferred Securities, (ii) upon the
distribution of the Guarantor's common stock to all of the Holders in respect of
the conversion of the Preferred Securities into the Guarantor's common stock or
upon the distribution of the Debentures to the Holders of all of the Preferred
Securities or (iii) upon full payment of the amounts payable in accordance with
the Declaration upon liquidation of the Issuer. Notwithstanding the foregoing,
this Preferred Securities Guarantee will continue to be effective or will be
reinstated, as the case may be, if at any time any Holder must restore payment
of any sums paid under the Preferred Securities or under this Preferred
Securities Guarantee.
ARTICLE VIII
INDEMNIFICATION
SECTION 8.1 Exculpation
(a) No Indemnified Person shall be liable, responsible or
accountable in damages or otherwise to the Guarantor or any Covered Person for
any loss, damage, liability, expense or claim incurred by reason of any act or
omission performed or omitted by such Indemnified Person in good faith in
accordance with this Preferred Securities Guarantee and in a manner that such
Indemnified Person reasonably believed to be within the scope of the authority
conferred on such Indemnified Person by this Preferred Securities Guarantee or
by law, except that an Indemnified Person shall be liable for any such loss,
damage or claim incurred by reason of such Indemnified Person's negligence or
willful misconduct with respect to such acts or omissions.
(b) An Indemnified Person shall be fully protected in relying in
good faith upon the records of the Guarantor and upon such information,
opinions, reports or statements presented to the Guarantor by any Person as to
matters the Indemnified Person reasonably believes are within such other
Person's professional or expert competence and who has been selected with
reasonable care by or on behalf of the Guarantor, including information,
opinions, reports or statements as to the value and amount of the assets,
liabilities, profits, losses, or any other facts pertinent to the existence and
amount of assets from which Distributions to Holders might properly be paid.
SECTION 8.2 Indemnification
The Guarantor agrees to indemnify each Indemnified Person for, and
to hold each Indemnified Person harmless against, any loss, liability or expense
incurred without negligence or bad faith on its part, arising out of or in
connection with the acceptance or administration of the trust or trusts
hereunder, including the costs and expenses (including reasonable legal fees and
expenses) of defending itself against, or investigating, any claim or liability
in connection with the exercise or performance of any of its powers or duties
hereunder. The obligation to indemnify as set forth in this Section 8.2 shall
survive the termination of this Preferred Securities Guarantee.
When the Preferred Securities Guarantee Trustee incurs expenses or
renders services in connection with an Event of Default specified in [SECTION
5.1(5) OR SECTION 5.1(6) OF THE INDENTURE,] the expenses (including the
reasonable charges
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and expenses of its counsel) and the compensation for services are intended to
constitute expenses of administration under any applicable federal or state
bankruptcy, insolvency or other similar law.
SECTION 8.3 Compensation
The Guarantor agrees:
(a) to pay to the Preferred Securities Guarantee Trustee from time
to time such compensation as shall be agreed in writing between the Company and
the Preferred Securities Guarantee Trustee for all services rendered by it
hereunder (which compensation shall not be limited by any provision of law in
regard to the compensation of a trustee of an express trust); and
(b) to reimburse the Preferred Securities Guarantee Trustee upon its
request for reasonable expenses, disbursement and advances incurred or made by
the Preferred Securities Guarantee Trustee in accordance with any provision of
this Preferred Securities Guarantee (including the reasonable compensation and
the expenses and advances of its agents and counsel), except any such expense or
advance as may be attributable to its negligence, willful misconduct or bad
faith.
ARTICLE IX
MISCELLANEOUS
SECTION 9.1 Successors and Assigns
All guarantees and agreements contained in this Preferred Securities
Guarantee shall bind the successors, assigns, receivers, trustees and
representatives of the Guarantor and shall inure to the benefit of the Holders
of the Preferred Securities then outstanding.
SECTION 9.2 Amendments
Except with respect to any changes that do not adversely affect the
rights of Holders (in which case no consent of Holders will be required), this
Preferred Securities Guarantee may only be amended with the prior approval of
the Holders of at least a Majority in liquidation amount (including the stated
amount that would be paid on redemption, liquidation or otherwise, plus accrued
and unpaid Distributions to the date upon which the voting percentages are
determined) of all the outstanding Preferred Securities. The provisions of
Section 12.2 of the Declaration with respect to meetings of Holders apply to the
giving of such approval.
SECTION 9.3 Notices
All notices provided for in this Preferred Securities Guarantee
shall be in writing, duly signed by the party giving such notice, and shall be
delivered, telecopied or mailed by first class mail, as follows:
(a) If given to the Preferred Securities Guarantee Trustee, at the
Preferred Securities Guarantee Trustee's mailing address set forth below (or
such other address as the Preferred Securities Guarantee Trustee may give notice
of to the Holders of the Preferred Securities):
---------------------
---------------------
---------------------
---------------------
Attention:
---------------------
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(b) If given to the Guarantor, at the Guarantor's mailing address
set forth below (or such other address as the Guarantor may give notice of to
the Holders of the Preferred Securities):
Xxxxxx Communications Corporation
00000 Xxxxxxxx Xxx
Xxxxxxxx Xxxx, Xxxxxxxx 00000
Attn:
---------------------
(c) If given to any Holder of Preferred Securities, at the address
set forth on the books and records of the Issuer.
All such notices shall be deemed to have been given when received in
person, telecopied with receipt confirmed, or mailed by first class mail,
postage prepaid except that if a notice or other document is refused delivery or
cannot be delivered because of a changed address of which no notice was given,
such notice or other document shall be deemed to have been delivered on the date
of such refusal or inability to deliver.
SECTION 9.4 Benefit
This Preferred Securities Guarantee is solely for the benefit of the
Holders of the Preferred Securities and, subject to Section 3.1(a), is not
separately transferable from the Preferred Securities.
SECTION 9.5 Governing Law
THIS PREFERRED SECURITIES GUARANTEE SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK,
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES THEREOF.
SECTION 9.6 Counterparts.
The parties may sign any number of copies of this Preferred
Securities Guarantee. Each signed copy shall be an original, but all of them
together represent the same agreement. Any signed copy shall be sufficient proof
of this Preferred Securities Guarantee.
THIS PREFERRED SECURITIES GUARANTEE is executed as of the day and
year first above written.
XXXXXX COMMUNICATIONS CORPORATION, as
Guarantor
By:
------------------------------
Name:
Title:
______________________________, as
Preferred Securities Guarantee Trustee
By:
--------------------------------------
Name:
Title:
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